People v. Watt

• Decision Date: 12 November 1942
• Docket Number: No. 26711.,26711.
• Citation: People v. Watt, 380 Ill. 610, 44 N.E.2d 580 (Ill. 1942)
• Parties: PEOPLE v. WATT et al.
• Court: Illinois Supreme Court

380 Ill. 610

44 N.E.2d 580

PEOPLE

v.WATT et al.

No. 26711.

Supreme Court of Illinois.

Sept. 21, 1942.

Rehearing Denied Nov. 12, 1942.

Error to Criminal Court, Cook County; John A. Sbarbaro, Judge.

Willie Watt and others were convicted of murder, and they bring error.

Judgment affirmed.Ellis & Westbrooks, of Chicago (Richard E. Westbrooks, of Chicago, of counsel), for plaintiffs in error.

George F. Barrett, Atty. Gen., and Thos. J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel), for defendant in error.

GUNN, Justice.

Plaintiffs in error Willie Watt, Melvin King, William Butler and James Goodwin were indicted for the crime of murder, and upon trial by a judge of the criminal court of Cook county, without a jury, convicted and sentenced to confinement in the penitentiary. They prosecute a writ of error to this court.

The facts are substantially as follows: December 13, 1940, Isaac MacEachin, a clerk in a store located at No. 4120 Calumet avenue, Chicago, Illinois, was shot and killed while three of the defendants were in the room, and another waiting outside in the street. The proof tends to show the four defendants, being youths from sixteen to nineteen years of age, met in a poolroom a short time before the homicide, and planned to rob this store to get some Christmas money. While in the poolroom King exhibited a revolver, and it was handled by all of the defendants in the washroom, the cartridges examined, and then taken possession of by defendant Ggodwin. Defendants all went to the store, arriving about 7:15 P.M., and Goodwin, Butler and Watts entered while King remained on the outside. A small purchase of candy was made, when one of the defendants handed a note to one of two other clerks saying it was a holdup and to turn over the money. The names of these two clerks were, respectively, Gary and Jack Much. The note was handed to Jack Much. Both of these witnesses testified that one of the defendants immediately after the delivery of the note turned around and fired a shot at MacEachin. Gary Much shot at the defendants as they left the store, firing through the door and windows and wounded one of them. Willie Watt was confused and did not get out with the first two and was hit by a can of merchandise thrown by Jack Much. After the defendants left the store MacEachin was found lying on the floor, back of the counter, dead, with a bullet wound through his left arm and into his heart.

Defendants testified and all admitted meeting in the poolroom prior to the murder, and discussing the robbery, going to the store, and that three of them went in and one of them stayed on the outside. They disagree as to which one had the gun at the time of the firing of the shot, but the evidence tends to show it was defendant Goodwin. Willie Watt claims he went along with them to purchase some milk. There is no dispute that one shot was fired by one of the defendants. Defendants claim Gary Much fired first; the clerk claims he did not fire until after the defendants started to run, and then fired through the door and windows. All of the defendants were apprehended the same night, except Watt, who fled to Mississippi and was returned later. The revolver was found in the clothes of King, who claims it was handed to him in the alley after the shooting.

Upon hearing the evidence the court sentenced Goodwin to twenty-five years in the penitentiary, and the others to eighteen years each. A motion for new trial and in arrest of judgment was denied by the court. The defendant Watt made a motion to vacate the judgment after the motion for new trial and arrest of judgment had been denied. Each of the defendants was represented by separate counsel at the trial, but counsel who then represented Watt now prosecutes this writ of error on behalf of all of the plaintiffs in error.

It is insisted the trial court erred in refusing to grant Willie Watt a severance. The record shows the defendant Willie Watt was arraigned February 6, 1941, and stood mute, and a plea of ‘not guilty’ was entered for him. At that time the court asked if it was to be a jury trial, and counsel for Watt said he had a motion for severance. Thereupon the court asked if he wanted to proceed with the argument, and the State's Attorney then inquired as to whether it was going to be a bench trial or a jury trial, and whether there would be a plea of guilty or not guilty. Counsel for Watt announced he was going to submit his case to the court. The matter was then continued to February 26, 1941, without disposition, and then continued to March 31, 1941, the date of the trial. On that date all of the evidence on behalf of the People was introduced and counsel for Watt made a motion to discharge the defendant because of insufficiency in the proof, and upon denial by the court said he had pending a motion for severance. Thereupon the court said he had heard nothing of a motion for severance, and asked him if he was ready to proceed with the defense, upon which counsel for Watt announced he was. In thus appears a period of almost two months elapsed between giving notice of a motion for severance and the time when it was again called to the attention of the court, and then after the People had completed their evidence against all of the defendants.

If the defendant had intended to rely upon his motion for severance he should have called it to the attention of the court before the trial started, and asked the court to rule upon it, and in case of refusal it could be assigned as error. Under the circumstances disclosed the application for severance is waived. Lipsey v. People, 227 Ill. 364, 81 N.E. 348. A severance of trial of a joint defendant is not a matter of absolute right, but is within the sound discretion of the trial court. People v. Wood, 306 Ill. 224, 137 N.E. 799. Through the inaction of defendant the court had no opportunity to exercise a discretion and there was therefore no ruling of the court upon which error could be assigned.

It is also assigned as error that neither Watt nor his counsel were furnished with a copy of the indictment or a list of the witnesses and jurors, as is required by statute. The recital of the record is unusual. It recites ‘and the State's...